A Recap Of Proposition 8's Day At The Supreme Court

This is TALK OF THE NATION. I'm Neal Conan in Washington. It's day one in the debate over same-sex marriage at the Supreme Court. This morning the court heard arguments on California's ban on same-sex marriage, which was approved by voters in a ballot measure called Proposition 8. Tomorrow they'll hear a constitutional challenge to the Defense of Marriage Act.

Today's challenge to Prop 8 comes from Kristin Perry and Sandy Stier, legally married in California. They argue they were relegated to second-class status by passage of Proposition 8. A federal court in California struck down Prop 8 as a violation of the state constitution, particularly in a clause that covers equal protection. The Supreme Court could reverse that decision, uphold it but limit its scope to the state of California. It could find bans on same-sex marriage unconstitutional across the board, or it could punt.

We'll listen to substantial excerpts from today's argument. Later in the program we'll remember journalist Anthony Lewis and listen to an interview with him from our archives. But first to the Supreme Court, and joining us by phone from his office here in Washington, David Savage, the Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. Good to have you with us, as always.

DAVID SAVAGE: Hi Neal.

CONAN: And what we hear from various analysts is that we've gotten a pretty strong hint of which way this might go.

SAVAGE: Well, they are very divided, another familiar (unintelligible), a five-to-four split. But it sounded as though Justice Kennedy wanted to find a way to rule narrowly in a way that would allow same-sex marriage in California but without issuing some broad national decision.

CONAN: Well, we'll get to hear how we got to that conclusion a little bit later, but set the scene for us. This was a very dramatic day.

SAVAGE: Well, it sure was. They've never had an argument, they've never taken up the issue of same-sex marriage. There's an enormous buildup to this case. As you know, it's been fought in a whole - around the country in different states. Now nine states authorize same-sex marriage. Quite a few others have constitutional amendments absolutely forbidding it.

The court, as you know, is taking up two cases. The one tomorrow is about federal benefit for legally married gay couples. The California case had the potential to be the biggest decision, because it goes to the question of is there a right to marry. And if the court were to say yes, there's a fundamental right to marry, and denying it to gays denies the equal protection of the laws, that would make gay marriage the rule nationwide.

But I will say the tenor of the questions was that the justices, both conservative and liberal, are very wary of going too far too fast.

CONAN: Well, let's listen to some of the tap from today's hearing. The way this works, by the way, of course the hearing was held this morning, the audio is not released until this afternoon. We're going to playing our excerpts in chronological order and beginning with - this is Justice Sonia Sotomayor asking the lead lawyer for those in favor of Proposition 8, Charles Cooper, why he does not consider same sex couples as a class.

(SOUNDBITE OF AUDIO CLIP)

JUSTICE SONIA SOTOMAYOR: I don't quite understand it. If you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them?

CHARLES COOPER: Well, Your Honor, I would think that - that - I think it's a - it's a very different question whether or not the Government can proceed arbitrarily and irrationally with respect to any group of people regardless of whether or not they qualify under this Court's traditional test for suspectedness.

And - and the hypothetical I understood you to be offering, I would submit would create - it would - unless there's something that - that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that - that is not what we think is at the - at the root of the traditional definition of marriage.

JUSTICE ELENA KAGAN UNITED STATES SUPREME COURT: Mr. Cooper, could I just understand your argument? In reading the briefs, it seems as though your principal argument is that same-sex and opposite - opposite-sex couples are not similarly situated, because opposite-sex couples can procreate, same-sex couples cannot, and the state's principal interest in marriage is in regulating procreation. Is that basically correct?

COURT: Is there - so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the state's interest. But do you go further and say that it harms any state interest?

COOPER: Your Honor, we - we go further in the sense that it is reasonable to be very concerned that redefining marriage to - as a genderless institution, could well lead, over time, to harms to that institution and to the interests that society has always has always used that institution to address. But, Your Honor, I...

COURT: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs, what harm you see happening and when and how and - what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

COOPER: Once again, I would reiterate that we don't believe that's the correct legal question before the court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a...

JUSTICE ANTHONY KENNEDY: Well, then are - are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you're conceding that?

COOPER: No, Your Honor, no. I'm not conceding that.

KENNEDY: Well, but, then it seems to me that you should have to address Justice Kagan's question.

COOPER: Thank you, Justice Kennedy. I have two points to make on that. The first one is this: The plaintiffs' expert acknowledged that redefining marriage will have real-world consequences and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.

CONAN: That is Charles Cooper, the advocate for those in favor of California's Proposition 8, in dialogue with Justice Sonia Sotomayor. You also heard there at the end Justice Kennedy. David Savage, this was an argument that said wait, there's no other field of human endeavor in which it would be considered legal to discriminate against homosexuals. You couldn't deny them equal employment rights, for example. Why is this different?

SAVAGE: Yes, and did you notice what a difficult time he had answering what seems to be a pretty simple question? It's been a question that's at the heart of this. What's the harm? What's the harm of allowing gay couples of marry, particularly as Justice Kennedy said during (unintelligible) - couples who are raising children.

Mr. Cooper wants to say that, you know, this is a matter, traditional marriage. It should be decided by the states. But, you know, and if you go back 20 or 30 years ago when people thought about this, you just didn't think - gosh, many people didn't think of gay couples marrying.

But now that we've seen gay couples who are married, and we've seen couples raising children, you sort of ask yourself, OK, then what's the harm. What's the argument for, as Justice Kagan said, what's the argument for excluding them? You say marriage is a good thing, it's wonderful for raising children, it provides stability for a couple and for a - what's the harm of allow - and from what I could tell Chuck Cooper didn't have a good answer to that question today, and they didn't have a good answer to the question when the case was argued in San Francisco several years ago.

CONAN: Well, let's get back to that question of children. There was, of course, in the California case, it was gay marriage illegal, then legal for a period, and then illegal again. Along the way, there are, as we will hear Justice Ginsberg point out, some 40,000 children in the state of California who are part of this, being raised by same-sex couples, and of course same-sex adoption perfectly legal in the state of California.

(SOUNDBITE OF AUDIO CLIP)

JUSTICE RUTH BADER GINSBURG: You are opposing a judgment that applies to California only, not to all of the states. You are opposing a judgment that applies to California only, not to all of the States.

COOPER: That's true, Your Honor, and if there were a way to cabin the arguments that are being presented to you to California, then the concerns about redefining marriage in California could be confined to California, but they cannot, Your Honor.

KENNEDY: I think there's substantial - that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal - what could be a legal injury, and that's the voice of these children.

There are some 40,000 children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

COOPER: Your Honor, I certainly would not dispute the importance of that consideration, that consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in California. It's being debated elsewhere. But on that specific question, Your Honor, there simply is no data.

In fact, their expert agreed there is no data, no study, even, that would examine whether or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the State of California to recognize, support, and honor same-sex relationships and their families.

CONAN: Again that's Mr. Cooper, the advocate for those in favor of Proposition 8, there in dialogue with, well, first Justice Ginsberg, and then you also heard Justice Kennedy there. And David Savage, getting back to that point he refers to again and again, political process, the voters of California weighed in on this, and they made their decision, he argues.

SAVAGE: That's true although that doesn't strike me as a very strong argument to say that these couples - Mr. Cooper was saying, what's the advantage of being married. Well, I thought part of the argument - he says is marriage as an important institution, a sacred institution, a pillar of society, but why shouldn't these same-sex couples, they've got civil unions, isn't that good enough.

And their argument is yes, but why should we be excluded from the full benefits of marriage. I do think Cooper's broad argument is a - about the political process, is a good one and a powerful one. It's saying to the Supreme Court there's a national debate on this issue, you ought to stand back and let it be decided.

CONAN: And more on that when we continue to listen to excerpts of the arguments before the Supreme Court earlier today with David Savage of the Los Angeles Times and the Chicago Tribune. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. Earlier today, the Supreme Court heard arguments in Hollingsworth versus Perry, the case that centers on California's Proposition 8, which bans same-sex marriage in that state. The justices had questions on the proposition's constitutionality, equal protection, the key elements of marriage and whether the proponents even have standing, the legal right to bring a case at all.

The court released tape from the arguments just a couple of hours ago. We've asked David Savage of the Los Angeles Times, who was in court today, to join us to take us through the back-and-forth between the attorneys and the justices. Earlier, you heard Charles Cooper, the advocate in favor of Proposition 8, state to the justices, I think to - this was to Sonia Sotomayor - that he regards the principal purpose of the marriage as to sanctify procreation.

This is an issue that's taken up now by Justices Breyer, and then later Elena Kagan.

(SOUNDBITE OF SUPREME COURT HEARING)

JUSTICE STEPHEN BREYER: As long as you are on that, then I'd like to ask you this: Assume you could distinguish California, suppose we accept your argument or accept Justice Scalia's version of your argument, and that distinguishes California. Now, let's look at California.

What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile companies - couples of different sexes to marry would not? I mean, there are lots of people who get married who can't have children.

And to take a state that does allow adoption and say - there, what's the justification for saying no gay marriage? Certainly not the one you said, is it?

COOPER: You're...

BREYER: Am I not clear? Look, you said that the problem is marriage is an institution that furthers procreation.

COOPER: Yes, your honor.

BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California, and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation, given the fact that in California, too, couples that aren't gay but can't have children get married all the time.

COOPER: Yes, your honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn...

COURT: Well, suppose a state said, Mr. Cooper, suppose a state said because we think that the focus of marriage really should be on procreation, we're not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

BREYER: No, your honor, it would not be constitutional.

COURT: Because that's the same state interest, I would think, you know. If you're over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?

COOPER: Your honor, even with respect to couples over the age of 55, it is very rare that both couples - both parties to the couple are infertile, and the traditional...

(Soundbite of laughter)

COURT: No, really, because if a couple - I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(Soundbite of laughter)

CONAN: A moment of levity at the Supreme Court earlier today when - that was Justice Kagan, and earlier, Justice Breyer, sort of two of the more liberal members of the court ganging up on Charles Cooper, the advocate in favor of Proposition 8. And they seem to have found a flaw in his logic, David Savage.

SAVAGE: Yes, yes. He says that marriage is really about procreation, and both Justice Breyer and Justice Kagan are saying, well, that's really not true. Procreation is one issue, but there are plenty of older couples, couples who don't have children, and we don't say, well, in that case, you can't get married. And so, you know, he - Chuck Cooper's trying to give an explanation about what marriage is, that it's, you know, it's only about procreation, and it must therefore be limited to heterosexuals. But I didn't think most of the justices were buying it.

CONAN: It was interesting even hearing Justice Scalia come in on the guffaws that followed that exchange. But, of course, Mr. Cooper went first. He was followed by Theodore Olson, who represents the ban's challengers. And we'll hear him running into some problems with two of the more conservative justices, starting with the chief justice, John Roberts.

(SOUNDBITE OF SUPREME COURT SESSION)

THEODORE OLSON: As I pointed out at the outset, this is a measure that walls off the institution of marriage, which is not society's right. It's an individual right that this court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty and the pursuit of happiness.

In the cases in which you've described the right to get married under the Constitution, you've described it as marriage, procreation, family, other things like that. So the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married. Now, that...

CHIEF JUSTICE JOHN ROBERTS: I'm not sure, counsel, that it makes - I'm not sure that it's right to view this as excluding a particular group. When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.

It is - yes, you can say that it serves some of the other interests, where it makes sense to include them, but not all the interests. And it seems to me, if your friend argues on the other side, if you have an institution that pursues additional interests, you don't have to include everybody just because some other aspects of it can be applied to them.

OLSON: Well, there's a couple of answers to that, it seems to me, Mr. Chief Justice. In this case, that decision to exclude gays and lesbians was made by the state of California.

ROBERTS: Oh, that's only because Proposition 8 came 140 days after the California Supreme Court issued its decision.

OLSON: That's right.

ROBERTS: And don't you think it's more reasonable to view it as a change by the California Supreme Court of this institution that's been around since time immemorial?

OLSON: The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process clauses of that California constitution did not permit excluding gays and lesbians from the right to get married.

JUSTICE ANTONIN SCALIA: You've led me right into a question I was going to ask. The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We decide what the law is. I'm curious: When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?

Sometimes - some time after Baker, where we said it didn't even raise a substantial federal question? When did the law become this?

OLSON: When - I - may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

SCALIA: Easy question, I think, for that one: At the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.

(Soundbite of laughter)

When do you think it became unconstitutional? Has it always been unconstitutional?

OLSON: When the California Supreme Court faced the decision, which it had never faced before, is does excluding gay and lesbian citizens - who are a class based upon their status as homosexuals - is it constitutional...

ROBERTS: That's not when it became unconstitutional. That's when they acted in an unconstitutional matter - in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

OLSON: Then - they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it...

SCALIA: I'm not talking about the California Supreme Court. I'm talking about your argument. You say it is now unconstitutional.

OLSON: Yes.

SCALIA: Was it always unconstitutional?

OLSON: It was constitutional when we - as a culture, determined that sexual orientation is a characteristic that individuals, that they cannot control and that that...

SCALIA: I see. When did that happen? When did that happen?

OLSON: There's no specific date in time. This is a...

SCALIA: Well, how am I supposed to know how to decide a case if you can't give me a date when the Constitution changes?

OLSON: Because the case that's before you - the case that's before you today, California decided at the - citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation.

CONAN: And he could not come up with a date. I don't think he wanted to come up with a date, David Savage.

SAVAGE: No, it's - that's, you know, Justice Scalia's view of - the court should decide based on the original history of the Constitution, and the equal protection clause was added in 1868, part of the 14th Amendment. And Justice Scalia is certainly right to say no one in 1868 thought that the phrase equal protection of the laws meant, you know, protection for gays and lesbians.

But one of the problem of Justice Scalia's argument, you know, is he said that what - Ted Olson said, well, what about interracial marriage? And Scalia said, oh, that's easy. That was in 1868. Well, of course it wasn't in 1868. It was 1967. In other words, for 100 years the law continued to forbid in much of the country interracial marriages. It wasn't until the Supreme Court, in 1967, said that we think this violates the equal protection of the laws. Therefore it is unconstitutional.

So it is correct to say that some of these provisions have a long history, but there are different points in time - the famous Brown decision in 1954 where the Supreme Court said despite what we've said before, we conclude today that racial segregation is unconstitutional. And Justice Scalia wanted Ted Olson to say, OK, what date? When did that happen? Well, of course the answer is it won't happen till...

CONAN: Till you do it.

SAVAGE: Until you do it and rule that discrimination based on sexual orientation violates the equal protection clause.

CONAN: There's also an argument that public opinion has been changing very rapidly. The most recent poll suggests that as much as 58 percent of the country now in favor of gay marriage. But here's the point where we get to, listening to the arguments, where some of the justices suggest, well, maybe we shouldn't be going so fast. Here's Justice Sotomayor.

(SOUNDBITE OF HEARING)

SOTOMAYOR: Is there any way to decide this case, in a principled manner, that is limited to California only?

OLSON: Yes. The 9th Circuit did that. You could decide a standing case that limits it to the decision of the district court here. You could decide it as the 9th Circuit did.

KENNEDY: The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor. There's a wonderful destination. There's a cliff, whatever (unintelligible).

KENNEDY: But you're doing so in a case where the opinion is very narrow - basically that once the state goes halfway it has to go all the way or 70 percent of the way - and you're doing so in a case where there's a substantial question on standing. I just wonder if the case was properly granted.

OLSON: Oh, the case was certainly properly granted, Your Honor. I mean there was a full trial of all of these issues. There was a 12-day trial. The judge insisted on evidence on all of these questions. This is a...

KENNEDY: But that's not the issue the 9th Circuit decided.

OLSON: The issue - yes, the 9th Circuit looked at it and decided because of your decision on the Romer case, this court's decision on the Romer case, that it could be decided on the narrower issue, but it certainly was an appropriate case to grant. And those issues that I've been describing are certainly fundamental to the case.

And I don't want to abuse the court's indulgence, that what I - you suggested that this is uncharted waters. It was uncharted waters when this court, in 1967, in the Loving decision, said that inter - prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional.

KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States.

OLSON: And what we have here...

KENNEDY: So that's not accurate.

OLSON: I respectfully submit that we've learned to understand more about sexual orientation and what it means to individuals. I guess the language that Justice Ginsburg used at the closing of the VMI case is an important thing. It resonates with me. A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.

CONAN: We're listening to excerpts of today's Supreme Court arguments on same-sex marriage. You're listening to TALK OF THE NATION from NPR News.

And David Savage, I was impressed by Theodore Olson not gasping when it was Justice Kennedy there, the critical swing vote, saying maybe this case wasn't even properly granted.

SAVAGE: Yes. That was sort of hard to figure. What I took from that, Neal, is that we didn't know why they granted this case, those of us who follow the court. We knew why they had to grant - hear the DOMA case because - the defense of marriage case because it's a federal law. It's been struck down by courts in Boston and New York.

Supreme Court has to decide that - you can't have a federal law that's unconstitutional in New England and, you know, constitutional in other parts of the country. And the guess was that they would hold the Prop. 8 case or not do anything with it. Instead, the court granted the case. And so you thought, who wanted to grant that case?

And it only takes four votes. And it sure suggested from today's argument - and Justice Kennedy basically said it twice - that the court's conservatives had voted to grant that case with the idea of overturning the...

CONAN: The 9th Circuit.

SAVAGE: ...9th Circuit. And Kennedy seemed to say we would have been better off denying this appeal entirely, which would have left the 9th Circuit's narrow decision intact. That is, it would have avoided Prop. 8, allowed gay marriage in California, but not been any sort of national precedent. And he said that would have been a better way to go.

CONAN: And he has within his power the capability to make that happen.

SAVAGE: Yes. And boy, at the end of the day, I mean that's one of the puzzles, is whether the court will try to rule on this case or perhaps hold it till June and say we are today dismissing the California case. We should not have taken it up and we're going to leave standing the appeals court decision that strikes down Prop 8, and we're not going to say anything more for now on whether there's a national constitutional right for gay marriage.

CONAN: And briefly, tomorrow it's the Defense of Marriage Act, as you suggest, a federal law struck down in some parts of the country. But this is about equal treatment under the law. If you're married legally in one state, should you be treated by the federal government as if you're legally married?

SAVAGE: Yes. That exactly right. There are 130,000 legally married gay couples in the country. You know, most of them in New York and New England. And the way the law now is that even though marriage is a state matter and that they're fully legally married, when they, for example, sit down to do their taxes this month, they can't check married filing jointly because the federal government doesn't recognize their marriage. So the question is, does that discrimination against these legally married couples violate the equal protection guarantee in the Constitution?

CONAN: David Savage of the Los Angeles Times and the Chicago Tribune. Join us again tomorrow. We'll be listening to excerpts from the arguments over the DOMA case, the Defense of Marriage Act. David, thanks very much for your time.